Warrantless Searches
People who wonder why I'm always so wigged out about the excessive passing of laws need to read stories like this Radley Balko piece in reason, "The SWAT Team Would Like to See Your Alcohol Permit - How police use regulatory inspections to conduct warrantless searches":

In August a team of heavily armed Orange County, Florida, sheriff's deputies raided several black- and Hispanic-owned barbershops in the Orlando area. There were more raids in September and October. According to the Orlando Sentinel, barbers and customers were held at gunpoint, some in handcuffs, while police turned the shops upside down. A total of nine shops were raided, and 37 people were arrested.

By all appearances, these raids were drug sweeps. Shop owners told the Sentinel police asked where they were hiding illegal drugs and weapons. But in the end, 34 of the 37 arrests were for "barbering without a licence," a misdemeanor for which only three people have ever served jail time in Florida. Two arrests were for misdemeanor marijuana possession. Just one person was arrested on felony drug and weapon charges.

The most disturbing aspect of the raids, however, was that police didn't bother to obtain search warrants. They didn't have to. The raids were conducted in conjunction with the Florida Department of Business and Professional Regulation. Despite the guns and handcuffs, under Florida law these were licensure inspections, not criminal searches. So no warrant was necessary. Such "administrative searches" are a disturbingly common end run around the Fourth Amendment.

...But the Fourth Amendment requires that searches be "reasonable." If using a SWAT team to make sure a bar isn't serving 19-year-olds is considered reasonable, it's hard to imagine what wouldn't be.

...Most Americans probably believe they can't be searched, handcuffed, or have a police gun pointed at them without probable cause. But courts have consistently found that the Fourth Amendment affords less protection for businesses, their employees, and their patrons than it does for private homes. Get caught in the wrong bar, barbershop, or pool hall at the wrong time, and you could find yourself subjected to an "inspection" that looks and feels suspiciously like a search.

Comments

Not to miss the point, but what burns me about these types of terroristic intrusions into private businesses and homes is that, in many cases, innocent dogs get shot. The people aren't guilty of anything and the police ram their down down and the dogs starts to bark (what dog wouldn't?!) and the cops shoot the dog b/c "it's a threat" (b/c these idiots aren't trained in handling dogs).

I could mentally recover from having my rights shredded but if a cop busted into my house "on suspicion/anonymous tip (from an angry neighbor!?)" and shot my Boxer I'd die right then an there. B/c I'd kill those SOBs and get shot myself.

Understanding not everyone is crazy in love with dogs like my husband and I are...how do we fight back? There's a lot of outrage on this site (and I'm with you 100%) and talking about it and knowing about it are great steps. But what else can we do?

Gretchen
at December 14, 2010 5:03 AM

As I said before, those who think they have some kind of magical protection with the "No Warrant/No Search" rule are deluding themselves. Any cop can fabricate a reason to circumvent this rule.

Patrick
at December 14, 2010 5:07 AM

Patrick, in the country I grew up in they needed to convince a judge of that reason.

MarkD
at December 14, 2010 6:09 AM

I'm with MarkD on this one.

I have to agree with Patrick though, its easy to think of any old reason to circumvent the rules. BUT, it used to be that flimsy violations turned into tossed arrests.

But when you start codifying how to get around the rules, that is where the real problem starts.

Robert
at December 14, 2010 6:24 AM

In some cases it might get the arrest tossed, but as gretchen pointed out it doesnt brng your dog back to life, or pay to repair the damages to your home and belongings, or get you your job back if you were kept in jail olong enough to be fired for not showing up to work

Police shouldn't be conducting administrative searches. Checking to see if businesses have proper permits should be left to the regulatory agency, not law enforcement personnel.

Any cop can fabricate a reason to circumvent this rule.

Yes.

BUT, it used to be that flimsy violations turned into tossed arrests.

Justice White authored a slew of opinions during the 80s that undid a lot of the protections against warrantless search. Drug war lunacy has done much to undermine the 4th Amendment exclusionary rule protections that used to help keep cops form going over the line.

Not to miss the point, but what burns me about these types of terroristic intrusions into private businesses and homes is that, in many cases, innocent dogs get shot

Balko writes about these cases a lot, too. I really appreciate his efforts to raise attention about abusive searches and law enforcement tactics.

Christopher
at December 14, 2010 7:55 AM

This is an interesting commentary--still, I think this action is warranted if the shops were really shut down to eliminate bad hair-doos. They are a form of visual blight, and lower surrounding property values.

BOTU
at December 14, 2010 11:10 AM

The rights of humans are infinitely more important than the lives of animals, but this is a case where the securing of the former will help protect the latter.

Robert
at December 14, 2010 11:44 AM

...Most Americans probably believe they can't be searched, handcuffed, or have a police gun pointed at them without probable cause.

Yeah, well, most Americans have lately believed all sorts of false things about their "rights".

And I don't mean "we had those rights before and now don't because EVIL".

I mean that searches have not always been dependent on probable cause (and some of them still aren't); searches incident to a border crossing and more limited ones "for officer safety" during a mere traffic stop, for instance.

And having a gun pointed at you has never required "probable cause" - it's required the officer to think there was some reason he should cover you with a gun. Probable cause is a legal term of art that applies only to searches, not all police interactions.

It's like people who think they have a "first amendment right" to free speech outside of a government context. They don't and never have, but try telling them that.

We are, right now still damn near at the highest level of protection of individual rights ever in history, not a new low.

(Seriously; the "free speech" protections we have now would have shocked people of the 30s or 40s.

There's much room for concern, and individual abuses exist that should be fought tooth-and-nail.

But really, the overall climate is much more rights-friendly than in times past, and we shouldn't forget that either. We see things as rights or probable rights now that would have been laughed out of serious conversation in past decades.)

Sigivald
at December 14, 2010 2:47 PM

MarkD: Patrick, in the country I grew up in they needed to convince a judge of that reason.

Does anyone remember the seizure of people's money and assets for having a positive hit from a drug dog -- even though they didn't find drugs?

This is just going to go on until we can finally get intelligent people in Congress and and state legislatures. The problem is that most intelligent persons run from serving because they see how much it costs and how little they get back unless they are on the take.

Jim P.
at December 14, 2010 8:35 PM

"And since his reasons are subjective, you have to prove that the cop was lying when he thought he smelled marijuana. Good luck with that."

I don't have time to google right now, but I"m pretty sure I've read that the majority of warrantless searches are tossed out. I'm about to start defensive driving online, so maybe someone else can google that and see what they find.

All you have to do to see why so many people are in jail for drugs or any other crime is watch The First 48. people are stupid. They convict themselves, the cops rarely have to work much. When they DO have to work, the odds are not in their favor.